Trask: Translating the Second Amendment

Following the Newtown shooting, people asked for an open and honest discussion about firearms rights and gun control. This has inexorably led to discussions of the meaning and purpose of the Second Amendment. Until we can all at least understand the amendment’s purpose, fruitful discussion is impossible.

Following the Newtown shooting, people asked for an open and honest discussion about firearms rights and gun control. This has inexorably led to discussions of the meaning and purpose of the Second Amendment. Until we can all at least understand the amendment’s purpose, fruitful discussion is impossible.

So, what does the amendment say? “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Most of the controversy about the Second Amendments stems from the phrase “a well regulated militia”. Many take the position that a well-regulated militia is a military body bound by governmental restrictions, akin to the Armed Forces or the National Guard. However, at the end of the late 18th Century, the term “well regulated”, especially with respect to troops, is more accurately defined as “properly disciplined”. Also, it should be noted that, unlike today, there was no Federal standing army. The defense of the fledgling colonies fell to individual citizens – the people.

If we were to translate the text of the Second Amendment into modern American English: “A properly disciplined body of citizens is necessary for the security of the citizens of a free Country. Therefore, the right of the people to possess and use firearms shall not be infringed.”

Today, the “security of the free state” is maintained by one of the largest professional military organizations in the world. Still, the Supreme Court has recognized the relevance of the Second Amendment. In 2008 and 2010, the Supreme Court issued two landmark decisions officially establishing individuals' rights to possess firearms and employ them for lawful purposes. In District of Columbia v. Heller, the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. In McDonald v. Chicago, the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government. Nevertheless, the Supreme Court has ruled that the modern Second Amendment is not absolute, and holds that some restrictions on firearms are consistent with the Constitution.

Still, I think the Court missed the mark by focusing primarily on personal protection and “militia service”. While certain limitations have practical import, the drafters of the constitution did not intend the amendment to protect an individual’s ability to defend his hearth and home against vagabonds, delinquents and criminals. The founding fathers did not have the Wild West in mind – they feared a much more powerful enemy. The Second Amendment’s purpose is very sobering, very heavy and very real: It is to ensure that the governed have a way to forcibly limit the actions of those who govern them. It is an implicit challenge which states that if representative politics fail, the people still hold the power to exert their collective will on a corrupt or tyrannical governing body. The Second Amendment as it was written never contemplated the rights of sportsmen, hunters, or the potential victim of a crime.

Page 2 of 2 - We should not view the importance of the Second Amendment as a partisan political issue. The question is not “should people be allowed to have guns”, but rather “should the people have the ability to protect themselves from an oppressive government”. This cornerstone right protects individuals hailing from all sides of the political divide.

We all want to limit crime, protect our children and protect ourselves. But, we need to be cautious – a knee-jerk reaction to address incidents like Newtown will have long-term and detrimental consequences to all our collective rights. After 9/11, many people responded out of fear and anger, calling on the government to ensure that something like that would “never happen again”. What it got us, though, was a systematic gutting of other rights, liberties and privacy in the interest of safety. We need to ask ourselves if we are willing to go down that road again.

In 221 years since the Second Amendment was ratified, we have thankfully never needed to implement its true purpose, and I hope that we never do. Still, it doesn’t mean it is not important and worth saving.

Matthew Trask is an attorney in Framingham whose practice includes representing firearms owners.